Social networking - An employer's perspective

What can an employer do if one of its employees posts damaging comments about it on a social networking website, such as Facebook or Twitter? In answering this question, the employer will clearly need to take account of the individual circumstances of the case. However, advance preparation for this kind of situation can be extremely beneficial, by widening the range of options open to the employer, helping it to justify the decisions it makes, and in ensuring employees understand what is acceptable.

Take, for example, a case from earlier this year, involving a pub manager and her employer JD Wetherspoons plc. After being subjected to abuse from a couple of customers, the employee made several negative comments about these customers on Facebook. A relative of one of the customers later complained to Wetherspoons that these remarks had been offensive and "very public". The employee's subsequent dismissal for gross misconduct was found by the tribunal to be fair, on the basis that, in lowering the reputation of Wetherspoons and its customers, the comments had breached the employer's email, internet and intranet policy. Had there been no policy, the dismissal may well have been found to be unfair, making the employer liable to pay compensation.

Despite this, many employers have not kept pace with the dramatic rise and development of social networking. Around half of internet users now engage in social networking online, up from just 17% in 2007. However, only an estimated one in ten employers currently has a social networking policy.

From an employer's perspective, social networking does bring opportunities and benefits. It can provide a means of advertising products and services and for employees to develop contacts that could, potentially, yield business. More controversially, some employers now use social networking as a method of screening applicants as part of their recruitment process.

With these benefits come a number of risks. Dangers employers may need to consider include the following:

• The possibility of employees being bullied, harassed or victimised by their colleagues via social networking websites.
• The risk of confidential and commercially-sensitive information being divulged online.
• As in the Wetherspoons case, the risk of derogatory comments being made about customers, other members of staff or the employer, in the process damaging the business' reputation. Even where the employer is not named, it may still be damaged by association if the employee's profile records where he or she works.
• Staff using social networking to air any grievances they may have, rather than following the employer's formal procedure. This could result in grievances going undetected.
• If the employer examines social networking profiles as part of the recruitment process, there is a danger of judgements being made on the basis of age, sex, disability, race, religion or sexual orientation, potentially discriminating against certain candidates.

With many employees now able to access the internet at home or via their mobile telephones, simply barring access to social networking in the workplace will not be an adequate response to these risks. Social networking blurs the distinction between home and work, with social networking activity having the potential to cause harm to an employer wherever and whenever it takes place.

It is therefore crucial that all employers consider implementing a social networking policy. We have noticed an increase in the number of our clients who are asking us to draft bespoke social networking policies on their behalf.

Preparing a policy is not the end of the process. The policy will be of little use if employees are not aware of it. It should be communicated to existing staff and incorporated into the induction process of new employees. To ensure employees feel involved and understand the policy, an open culture in which employees can ask questions about it and suggest improvements should be encouraged. With technology evolving so quickly, the policy also needs to be kept under review, to ensure it remains relevant.

Social networking is a phenomenon that appears set to become ever more important. If employers do not seize the opportunities it offers, they may be left behind. Conversely, employers that do not consider the risks and address these in a clear and comprehensive way may find themselves vulnerable to employee claims and reputational damage.

Source Ashfords Solicitors